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Wednesday, December 30, 2009

As the year draws to a close, it's the perfect time to roll out the top 10 Lawffice Space entries for the year... nay, the decade... of all time! Alright, I started the blog May 7th of this year, so it's all the same.

10. Senate to Examine Gross v. FBLNo doubt about it, the Supreme Court decision in Gross v. FBL was one of the employment law stories of the year. Lawffice Space was one of the first blogs to cover the legislative response, including this announcement of Senate Judiciary Committee hearings on the issue.

Ricci was one of those rare employment law cases that drew national media attention and got people who otherwise ignore the law all riled up. I wrote numerous entries on the case including summaries of each opinion. My attempt to read between the lines of Justice Scalia's concurring opinion was the most popular and the only one in the top 10.

This entry described a case in which a Court protected a transgender individual under Title VII.... which is remarkable because Title VII does not protect transgender people. It's an interesting take on using sex-stereotyping to broaden the protection of Title VII.

H1N1 was all the rage for a while. It seems to have dropped off the radar a little, but employers are still interested on how best to prepare. This entry provides my notes/overview of guidance issued by the federal government.

I noticed that I was getting a ton of traffic for the #3 entry in this countdown. Upon examining the site analytics I determined that no one cared about Seva Brodsky, they were searching for advice on failing out of law school! Being a man of the people, I knew I had to give the people what they wanted: Advice on what to do when confronted with the terrifying possibility that you are failing out of law school.

Well, that wraps up 2009. Thanks for reading and I look forward to bringing you more Lawffice Space in 2010 and for many years to come!

Monday, December 28, 2009

A Third Circuit decision released last week (Smith v. City of Allentown) applied the McDonnell Douglas burden shifting framework to an ADEA claim. A few months ago this would not have been news. Now it garners attention (from among others Workplace Prof Blog and now, Lawffice Space).

"Appellees argue that Gross renders McDonnell Douglas’s burden-shifting inapplicable to ADEA cases and that we should dispose of the instant appeal solely by inquiring whether Smith would have retained his job but for the alleged age discrimination. However, we may not depart from our prior decisions applying McDonnell Douglas to age discrimination cases unless those decisions are irreconcilable with Gross.. . . .Gross stands for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case. McDonnell Douglas, however, imposes no shift in that particular burden.. . . .Hence, Gross, which prohibits shifting the burden of persuasion to an ADEA defendant, does not forbid our adherence to precedent applying McDonnell Douglas to age discrimination claims."

The Second and Sixth Circuits agree that McDonnell Douglas still applies in the world of ADEA. How other Circuits will rule remains to be seen.

So, why did the Supreme Court even bother with the note? If it was an attempt to get Circuits to drop McDonnell Douglas in ADEA cases, then it has thus far proven a failure. I find the more likely explanation to be two-fold:

Foreshadowing: If this issue is presented to SCOTUS in the future, the Court might hold that McDonnell Douglas does not apply in ADEA cases; and/or

A note to Congress: The Gross decision was based largely on differences between the ADEA statutory language and language found in Title VII. Perhaps it's a not-so-subtle note, "Hey, if you don't like this holding, all you have to do is change the ADEA statute... and while you're at it, you might want to decide if McDonnell Douglas applies so we don't have to decide it for you."

"Every method for proving either such violation, including the evidentiary framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), shall be available to the plaintiff."

Congress seems to be preemptively answering the question before the Supreme Court answers for them.

Fears of the death of McDonnell Douglas in ADEA claims were not unfounded. Gross cast a serious shadow of doubt but thus far the fears have not come to fruition. Realization of these fears is just one Supreme Court opinion away, however... unless Congress heads them off at the pass.

Friday, December 25, 2009

Christmas day seems like an appropriate time to reflect on humanity through the ages, including (after all, this is an employment law blog) employment. The Christmas story is actually filled with various jobs. There's an innkeeper providing his manger to a very famous (though not at the time) carpenter named Joseph. Shepherds watching over their flocks and a visit from three kings... even then, some jobs paid better than others!

I suspect most of us don't know any shepherds, or kings, though certainly both still exist. One of my Christmas gifts this year was a biography of Sam Adams by Ira Stoll. In Samuel Adams - A Life, Stoll states that Adams graduated from Harvard in a class of only twenty-four. More remarkable than that, seven of his classmates went on to become ministers! I bet you'll have trouble finding a Harvard class of almost 30% ministers these days.

Sadly, many people of Adams' time and into the 19th century were "employed" as slaves. I generally think of employment as a voluntary exchange of work for compensation. Thankfully, slavery has been abolished and is no longer a legally recognized job.

I'm also reminded of a recent conversation I had with my mother and her sisters. They were reflecting on people with whom they went to school growing up. They discussed the limited job options for women of the time. The expectation was that women who worked were either school teachers or nurses. Today, of course, all occupations are realistic for women (though equality issues/debates continue).

Today, in the United States in particular, we live in a time of greater employment options for a greater variety of people than ever before. While we have made great strides, including the abolition of slavery and increased opportunity for women in the workforce (not to mention other classes of people) it is not all great news this Christmas. The unemployment rate lingers around 10%, and millions are still in search of work. FoxNews reports that twenty-five states have run out of unemployment insurance money and "the jobless are facing potentially reduced benefits."

So this Christmas, it's the perfect time to reflect on how far we've come and the opportunities of our age, while remembering those still struggling to find their own opportunity.

Monday, December 21, 2009

The Blog of Legal Times (aka BLT) reports that President Obama signed a 2009-10 spending bill including significant restrictions on arbitration clauses used by defense contractors. Binding pre-dispute employee/employer arbitration clauses have been somewhat of a hot issue in employment law lately. As BLT reports:

Under Section 8116 of the bill, no money can go to a defense contractor unless the contractor agrees not to enter into or enforce any employment contract “that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration any claim under title VII of the Civil Rights Act of 1964,” or many tort claims.

The spending bill includes exemptions for small contracts and a "national security" waiver.

The BLT piece mentions Jamie Leigh Jones. Ms. Jones recently testified before the Senate Judiciary Committee (Video | Transcript). She has a harrowing yet compelling story supporting this new restriction. Sadly, Ms. Jones reported she was raped by her coworkers while working on a defense contract in Iraq. Her employer sought to resolve her claims through arbitration, citing a pre-dispute arbitration agreement.

Joe Markowitz, a California attorney, has done some interesting blog entries on pre-dispute arbitration agreements. A restriction on military contractors may be a small victory for arbitration clause opponents, but it's an important signal that the administration and Congress support increased restrictions. Additional changes may very well be forthcoming... I'll keep you posted!

Wednesday, December 16, 2009

Alright, if you've been following Lawffice Space the past couple of weeks you recall that I've done a number of posts on the topic of First Amendment Unemployment Compensation. Skip the recap if you're all caught up...

Recap

First, an entry on Sherbert v. Verner in which the Supreme Court held a state requirement that an employee be able to work on Saturday to be eligible for unemployment compensation was unconstitutional where the employee was unavailable because his religious beliefs prohibited work on Saturdays.

I then moved on to do two entries, Hobbie I and Hobbie II, in which the Supreme Court held that an employee fired for refusing to work on Saturdays (for religious observance) could not be denied unemployment compensation under the First Amendment. I noted that the statute merely required the employee to comply with the employer's standards and did not directly interfere but the Court did not address this direct/indirect distinction.

Speech Analysis

So here we are. The Supreme Court has essentially said that unemployment compensation cannot be denied when a private employer's reason for terminating an employee violates the First Amendment Free Exercise Clause (even though state action is generally necessary to violate the First Amendment).

Griffin allegedly bothered a patient by talking about Obama and the need to stockpile food and guns. Not surprisingly... but perhaps unconstitutionally... Griffin was found to be terminated for "misconduct" making him ineligible for unemployment benefits. The Court cited Hobbie in applying the First Amendment Free Exercise Clause to UC hearings, and De Grego v. Levine, 362 N.Y.S. 2d 207 (N.Y. App. Div. 1974) for extending this reasoning to political speech.

The Court then analogized to public employee free speech cases! My own view is that public employee free speech is an extremely complex area of the law (or perhaps just inconsistent). One of the mainstays of public employee free speech, however, is the Pickering test which balances the right to speak as a private citizen on matters of public concern against the public employer's interest in "promoting the efficiency of the public services it performs."

Here's where the First Amendment application gets a little clunky... there is no public employer; the statutory framework's efficiency is wholly unrelated to the private employer's efficiency; and there are no "public services" provided by the private employer! It's not clear why we analyze this as a public employee case and not a statutory infringement of speech case... after all, it's supposedly the unemployment compensation statute's definition of "misconduct" that's at issue, right?

In the coming entries I'll have some fun with future applications of this legal framework, and apply a private/public distinction that would avoid this problem of "Constitutionalizing" private actions.

Monday, December 14, 2009

The Supreme Court granted certiorari today in City of Ontario (California) v. Quon. The Court will likely address public employees' privacy expectations in text messages sent on employer-issued pagers.

"Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers."

"Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has no formal no-privacy policy pertaining to text message transmissions and the operational realities of the police department are such that SWAT team members are explicitly told their messages would remain private if they paid any additional overage charges."

The parties also briefed the expectation of privacy for people sending text messages to the public employee. I'm looking forward to some good public employee privacy analysis from the Court. In the meantime, O'Connor v. Ortega, 480 U.S. 709 (1987) is a good primer.

Saturday, December 12, 2009

"Congress shall make no law respecting an establishment of religion . . . ."

Yet, Congress has declared December 25 a federal holiday to commemorate Christmas day. Christmas, of course, the day on which Christians celebrate the birth of Jesus Christ, the only son of God, the messiah, and God incarnate (in other words, it has some not-so-subtle religious implications). People often ask me if recognizing Christmas as a federal holiday violates the First Amendment. The answer, per Ganulin v. U.S., 71 F. Supp. 2d 824 (S.D. Ohio 1999) is "No."

The opinion comes from a district court in Ohio but it was subsequently upheld by the Circuit Court which agreed with the District Court's reasoning. The Supreme Court denied certiorari (indicating they will not hear the case). The District Court actually began its analysis with a poem:

WE ARE ALL BETTER FOR SANTA THE EASTER BUNNY TOO AND MAYBE THE GREAT PUMPKIN TO NAME JUST A FEW!

AN EXTRA DAY OFF IS HARDLY HIGH TREASON IT MAY BE SPENT AS YOU WISH REGARDLESS OF REASON.

THE COURT HAVING READ THE LESSONS OF “LYNCH” REFUSES TO PLAY THE ROLE OF THE GRINCH!

THERE IS ROOM IN THIS COUNTRY AND IN ALL OUR HEARTS TOO FOR DIFFERENT CONVICTIONS AND A DAY OFF TOO!"

"Lynch," is the Supreme Court case, Lynch v. Donnelly, 465 U.S. 668 (1984). Although a little cutesy, the Court's poem actually does a decent job of laying out its rationale (and they even included a case citation).

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion."

The Court's resolution of the three prongs is foreshadowed by their poem.

First, Christmas serves secular purposes, including the accommodation of the "calendar of public activities." Second, the holiday is not primarily advancing or inhibiting religion - it is "recognizing the cultural significance of the holiday." Third, and finally, the Court could not find the requisite entanglement by merely closing federal buildings and declaring a holiday. The Court noted that federal employees can observe the holiday as they please and are not required to participate in any religious activities.

The Court dealt with a few other issues (standing, and equal protection) before dismissing the case against Christmas. The Court was in a tough position. On the one hand, it couldn't declare that Christmas is simply a secular holiday about shopping and cutting down pine trees (holding against the Christian faith)... on the other hand it couldn't describe it as a celebration of the birth of Christ (endorsing Christianity). Instead it walked the line, ultimately declining to, as the Court itself describes it, "play the role of the Grinch."

Thursday, December 10, 2009

Asher Adelman, founder of eBossWatch, recently released The eBossWatch Worst Bosses of 2009. The "winners" were selected by a panel of workplace experts. I actually had three distinct reactions to the list... at first I struggled to decide on which to focus for this blog entry... then I decided to go with all three.

1. Back in my day...

Waaay back in the 1900s as I approached graduation from Penn State, I was constantly interviewing for IT-related jobs. Before every interview I would go to the company's web site and that was the extent of the Internet research I'd do on my potential employers. Oh how far we've come! Now, I can literally search for the exact person who will be my boss and potentially uncover everything from EEOC complaints to discrimination lawsuits to specific allegations of abusiveness.

2. Public Shaming

Employment discrimination/harassment may carry a hefty price tag: litigation costs, potential liability (including attorneys' fees), not to mention the havoc of a toxic work environment. Now, to top it all off, the Internet provides for public shaming. Individual claims are rarely deemed newsworthy, but the Internet allows anyone to uncover the information with a quick web search. I'll also note that as societal attitudes toward discrimination have evolved there is now likely more shame involved in publication of the allegations than in the past.

3. Gratitude

I've had a number of bosses throughout my career and I can honestly say that each of them was "good." I think I've been lucky in that respect. But I suspect a number of people will read the Worst Bosses list and think, "and I thought my boss was bad!" Either way, the list may provide some perspective for your current situation.

Wednesday, December 9, 2009

The Supreme Court issued its first opinions (not counting per curiams) of the Fall 2009 term yesterday. Two of the cases were kinda sorta labor and employment law-related. Admittedly, the holdings are more generally applicable to agency review and litigation generally... but it's all we've got from the Supreme Court right now so I'm going with it!

Mohawk Industries, Inc. v. Carpenter

First, Justice Sotomayor issued her first Supreme Court opinion in Mohawk Industries, Inc. v. Carpenter (.pdf). The case involved an employee who alleged he was unlawfully terminated for refusing to recant statements he made about his employer's use of "undocumented immigrants." Sounds employment law-related enough, right?

Sadly, the holding (per the syllabus) was simply that

"Disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine."

So you can't immediately appeal a decision compelling disclosure of documents claimed to be attorney-client privileged, resolving a circuit split. Not too employment law-y but good to know nonetheless.

The New York Times noted an interesting tidbit from Mohawk - It was apparently the first time a Supreme Court opinion used the term "undocumented immigrant" as opposed to "illegal immigrant" (used in a dozen previous opinions).

Every Justice concurred in the judgment but Justice Thomas weighed in with his own concurring opinion that, as the NYT notes, was highly critical of the new Justice, Sotomayor. Rather than relying solely on the appellate rules in place, Sotomayor also injected some cost-benefit analysis into the mix. Per Justice Thomas:

"I would leave the value judgments the Court makes in its opinion to the rulemaking process.... [limiting] the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea."

Union Pacific v. Brotherhood, involved a dispute under the Railway Labor Act which requires employees and carriers to attempt settlement "in conference" prior to arbitration before the National Railroad Adjustment Board (NRAB).

In this case, there was no evidence of the pre-arbitration conference so the NRAB dismissed for lack of jurisdiction. The Supreme Court held unanimously that this was incorrect. The Board may prescribe rules but it is Congress that controls the Board's jurisdiction. The conferencing requirement was procedural not jurisdictional hence the NRAB erred in dismissing the case.

There was a side-issue dealing with the Due Process appealability of NRAB decisions. The Supreme Court punted on that issue having resolved the matter on statutory grounds.

Image: The 2009 United States Supreme Court - Public Domain as a work of the United States Federal Government.

Monday, December 7, 2009

I received some criticism concerning my previous post, Hobbie I, via comments from Anonymous on the blog and an employment attorney via Twitter. First, I wish to thank both of them for their honest, fair, and most importantly civil critiques. Both of them raised good points and alternative takes on Hobbie.

Anonymous left comments on Hobbie I and my earlier post on Sherbert v. Verner. Anonymous provided a helpful distinction between an eligibility case (Sherbert, in which the state mandated availability on Saturdays) and a disqualification case (Hobbie, in which the statute denied benefits if the employee was at fault in her termination). Anonymous said:

"If the employer had a statutory duty to accommodate the religious views of the employee, then the employer is at fault, and the employee is entitled to benefits. For the STATE to then deny benefits would be a violation of the First Amendment."

The statutory duty to accommodate (not clear if Anonymous intended under federal or state law) would likely be a "reasonable accommodation" standard. This would lead to a middle-of-the-road approach in which the First Amendment would only be implicated based on the reasonableness of the accommodation. If the statute mandated accommodation of specific religious practices, you may also run into establishment clause problems (briefly addressed in Hobbie and Sherbert).

I also received a series of tweets (note that Twitter is a medium often involving short-hand):

"There are many situations were Ee's refusal to comply w/ Emplyr requirement does not = fault."

"If a law defines as fault conduct protected by First Amendment the statute is unconstitutional."

All valid points. Particularly, 1 and 3 implicate the statutory definition of "fault" - a clear state action. While 2 is unquestionably true, I see no reason why the First Amendment mandates that refusal to comply with a private employer's requirements is excused for religious observance.

2 and 3 more clearly cut to the point of the Hobbie holding and I certainly see that as a plausible First Amendment-state action-Constitutional violation... but the tweets ignore the employer as the middle-man. The law does not define "fault" as "religious observance" or any other First Amendment-protected activity.

The statute in Hobbie defined "misconduct" (under which claimant was disqualified for benefits) as the violation of the private employer's standards. The statute is religion-neutral with no preference given to any religion nor any take on whether religion is or is not an excuse for violating an employer's rules. There is no conflict between the statute and the claimant's religious practices. Even at the employer-level, the employee in Hobbie was terminated for failing to work her scheduled shift, not for her religious beliefs or observances.

Yes, I see that the practical effect is the same - she didn't work on Saturdays because of her religion which led to her termination which led to her denial of benefits. Perhaps this indirect effect is enough to constitute a First Amendment violation (obviously it is based on the holding). I would like to have read some justification for this transfer from direct infringement of the claimant's religious observance in Sherbert, to the indirect infringement at issue in Hobbie.

Instead, all I got was a conclusory statement that "no meaningful distinction" exists. The distinction may not be "meaningful" (as in changing the outcome) but it undeniably exists and went un-addressed. I don't want to show my hand too much until I write the full post, but I will note that government delegation of First Amendment issues to private parties has proven determinative in at least one major Supreme Court decision.

Thanks again for the feedback. As always, readers are welcome to comment, reach me via Twitter (@philipmiles), or comment on the Facebook fan page.

Saturday, December 5, 2009

This entry marks Part II in my series on the evolution of First Amendment protections afforded private employees in the context of unemployment compensation benefits. In Part I, I covered Sherbert v. Verner, in which an employee was terminated for refusal to work on Saturdays for religious reasons. In that case, the Court held that a denial of unemployment compensation was unconstitutional.

I raised the point that it was unconstitutional because the STATE required that the employee be available to work on Saturdays as part of its UC law. My (over)emphasis on the word state is a result of the established law that state action is necessary for a Constitutional violation of the Fourteenth Amendment (which incorporates First Amendment rights among others). This post details the Supreme Court's apparent abandonment of the state action requirement in more recent First Amendment UC cases.

In Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987), the Supreme Court analyzed a case remarkably similar to Sherbert. An employee, in this case a jewelry retailer, refused to work her scheduled Saturday shifts because of her conversion to the Seventh-day Adventist Church. The Court does turn to the State law:

"Under Florida law, unemployment compensation benefits are available to persons who become 'unemployed through no fault of their own.' Fla.Stat. § 443.021 (1985)."

The employee was terminated for refusing to work shifts scheduled by her private employer.

While the Hobbie opinion is discussing a state law, it is a different provision from that in Sherbert. Sherbert dealt with a provision in which the state required that employees be available to work, under the circumstances on Saturday. In Hobbie, we switch from a claimant's availability post-termination to the moment of termination itself. Note that post-termination availability is a state requirement whereas working your scheduled shift is a private employer's requirement.

The Supreme Court assures us that it sees "no meaningful distinction" between Sherbert and Hobbie and finds the denial of benefits unconstitutional. With all due respect, I think there's a very meaningful distinction. How does someone "become unemployed" (the statutory provision in question in Hobbie) while holding a job with a private employer? The answer in Hobbie: She was terminated by her PRIVATE employer! OK, that's the last time I will use all caps, bold, and italics... but my point should be clear by now: there's a distinction in Constitutional law between state action and private action.

Justice Stevens has an extremely short concurring opinion in which he states:

"In such an instance, granting unemployment benefits is necessary to protect religious observers against unequal treatment."

The situation arose from (and the denial of benefits was based on) a private employer terminating a private employee. I'd argue that applying the First Amendment to the termination is actually not necessary to protect against unequal treatment based on religion. In fact, numerous other protections already exist to protect private employees from unequal treatment by their private employers based on religion, most notably Title VII.

In Hobbie, it appears the Supreme Court deemed it appropriate to demand that a private employer's reason for termination pass Constitutional muster before denying a terminated employee his or her unemployment compensation. In future posts in this series I will examine such issues as: applying free speech to unemployment compensation; a legal argument employing case law drawing the state/private distinction on which I rely; and the extraordinary implications of applying first amendment protections to unemployment compensation (hint: it goes way past the First Amendment).

Wednesday, December 2, 2009

Christina Romer, chair of President Obama's Council of Economic Advisers, wrote an op-ed in today's Wall Street Journal titled Putting Americans Back to Work. Tonight's entry will not focus on the article itself (though you may find it interesting) but rather a series of comments from WSJ readers. The commenters appear to object to employment law generally.

It begins with Paul Thiel writing:

"Here is what I need to do to hire a US worker:

Interview a variety of people to make sure I am in compliance with EEOC regulations. After I find someone, I need to get them to fill out I-9 and W-4 forms. I need to file these forms with the government and have them on hand in case I get audited. Now, I need to pay the employee. In addition to their pay, I need to collect FICA, FUTA, SUTA, Workers Comp. . . . Each quarter, I need to file form 941 and annually, form 945 with the IRS. The IRS can then audit me and tell me that I've done something wrong in this and demand penalties and interest. To be safe, I'm probably going to need to retain the services of a CPA and/or attorney to make sure I am doing all this right. Now I've got the person hired, if they don't work out and I need to let them go, my SUTA and FUTA taxes will go up. Soon, I'll also have to worry about providing health insurance for employees as well.

If I hire an Indian worker, I cut them a check each month."

I confess that I am ignorant of India's employment laws though I suspect cutting Indian workers a check entails covering employment law costs of their own. That doesn't really address his criticism - just a sidenote. The next commenter, Justin Murray, seemed just as down on employment law:

"[Y]ou'll need to hire and maintain a human resources department, which needs to be staffed above and beyond what's necessary for basic hiring and firing to include such things like a Diversity Officer to avoid lawsuits. And for those lawsuits that would come, all becuase of your own ambition to provide more jobs for more people, you'll need to keep a lawyer on retainer. God help you if card check gets passed and your workforce decides to unionize, then you'll have to add a whole new layer of costs like managing a pension and adding yet another witholding to keep track of, among other things."

Underlying these comments is the inescapable truth: employment law imposes costs on employers. These comments, however, do not attempt to assess any benefits of employment law. I'm not up for performing a cost-benefit analysis of all local, state, and federal labor and employment laws in a blog entry tonight... but I think it's helpful to recognize how some people view employment law.

A third comment on WSJ, from Michael Heidrick, had perhaps the most concise statement of their view:

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Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.